Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 134 of 167
`
`1 3 4
`
`A.
`
`The primary
`
`functionality did not change.
`
`There were variations and additional
`
`Doctor,
`
`it changed over time.
`
`It did change,
`
`yes.
`
`And,
`
`in fact,
`
`there was
`
`a second demonstration
`
`isn't that
`
`right?
`
`believe that's correct.
`
`think it was
`
`in March o:
`
`That sounds correct.
`
`So that's
`
`March o;
`
`2000 is at
`
`least a month
`
`‘ore the 'l8O patent was
`
`filed, right?
`
`A.
`
`Q.
`
`That's correct, yes.
`
`But you haven't
`
`o
`
`'ered any opinions that the
`
`?N technology
`
`from that meeting invalidates any claim
`
`any VirnetX patents;
`
`isn't that right?
`
`A.
`
`That's correct.
`
`"
`
`‘ocused on the earlier
`
`demonstration.
`
`Q.
`
`And that's because the later demonstration
`
`doesn't
`
`invalidate any claim o:
`
`'
`
`the VirnetX patents;
`
`that right?
`
`A.
`
`don't know.
`
`Q.
`
`Your a
`
`:torney has not asked you to look at
`
`that one?
`
`A.
`
`didn't look at it, and
`
`don't believe
`
`anyone asked me to.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2201
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2201
`
`
`
`Filed 04/05/10 Page 134 of 167
`
`1 3 4
`
`A.
`
`The primary
`
`functionality did not change.
`
`There were variations and additional
`
`Doctor,
`
`it changed over time.
`
`It did change,
`
`yes.
`
`And,
`
`in fact,
`
`there was
`
`a second demonstration
`
`isn't that
`
`right?
`
`believe that's correct.
`
`think it was
`
`in March o:
`
`That sounds correct.
`
`So that's
`
`March o;
`
`2000 is at
`
`least a month
`
`‘ore the 'l8O patent was
`
`filed, right?
`
`A.
`
`Q.
`
`That's correct, yes.
`
`But you haven't
`
`o
`
`'ered any opinions that the
`
`?N technology
`
`from that meeting invalidates any claim
`
`any VirnetX patents;
`
`isn't that right?
`
`A.
`
`That's correct.
`
`"
`
`‘ocused on the earlier
`
`demonstration.
`
`Q.
`
`And that's because the later demonstration
`
`doesn't
`
`invalidate any claim o:
`
`'
`
`the VirnetX patents;
`
`that right?
`
`A.
`
`don't know.
`
`Q.
`
`Your a
`
`:torney has not asked you to look at
`
`that one?
`
`A.
`
`didn't look at it, and
`
`don't believe
`
`anyone asked me to.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2201
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2201
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 135 of 167
`
`Q.
`
`Now, back to the source code, we
`
`talked abou'
`
`how there were multiple codes in this case, right?
`
`A.
`
`Q.
`
`A.
`
`That's right.
`
`There was a Defendant's 3353?
`
`I can't see it.
`
`Q.
`
`Take my word for it.
`
`It's some source code.
`
`fendant's Exhibit 3062,
`
`some more source code.
`
`A.
`
`Q.
`
`Okay.
`
`Can't really see it.
`
`I
`
`think there were
`
`multiple versions of
`
`the DV?N code on this one.
`
`You looked at all o:
`
`this code, right?
`
`Yes,
`
`I did.
`
`And it had di
`
`That's correct.
`
`Some from l998;
`
`some from '99;
`
`some from 2000;
`
`:rom '97?
`
`A.
`
`Q.
`
`Exactly.
`
`All right.
`
`But
`
`then you chose Defendant's
`
`ixhibit 3061. That's the one you relied on, right?
`
`A.
`
`Q.
`
`That sounds correct, yes.
`
`You relied on your attorney's guidance.
`
`They're the ones that helped you identify the right
`
`source code to look at, right?
`
`A.
`
`I did look at all the source code.
`
`I did have
`
`some guidance as to which was older and which was
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2202
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2202
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 136 of 167
`
`136
`
`younger, et cetera.
`
`Q.
`
`Your attorneys helped you iden-i_
`
`T
`
`fendant's
`
`Exhibit 3061 to look at;
`
`isn't that right?
`
`A.
`
`Again, no.
`
`They provided me with all the
`
`source code.
`
`Q.
`
`They told you to look at this one
`
`opinions in this case, didn't they?
`
`A.
`
`Q.
`
`I don’: recall that being the case.
`
`Look at your deposition.
`
`MR. MCLEROY: Would you pull up
`
`your deposition?
`
`lHfi W
`
`fl
`
`:
`
`T
`
`I have that
`
`in
`
`MR. MCLI
`
`I don't think
`
`given it to you yet.
`
`lifi W
`
`fiSS:
`
`Thank you.
`
`MQ.
`
`j&OY:
`
`"" you could, Mr. Moreno,
`
`blow up the portion starting a: Line ll of ?age 249.
`
`Q.
`
`(By Mr. McLeroy) You remember when I
`
`took your
`
`deposition, Dr. Wicker?
`
`A.
`
`Q.
`
`Yes,
`
`I do.
`
`It was,
`
`I
`
`think,
`
`in New York City, right, when
`
`came up to New York to visit you?
`
`A.
`
`Q.
`
`Yes,
`
`that's right.
`
`It was at your
`
`law :
`
`"ice there in
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2203
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2203
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 137 of 167
`
`1 3 7
`
`downtown Manhattan, right?
`
`A.
`
`Q.
`
`Yes,
`
`it was.
`
`And you were under oath then just
`
`like you're
`
`under oath today?
`
`A.
`
`Yes.
`
`Q.
`
`And I
`
`think the first question in this
`
`sequence that
`
`I asked you was:
`
`Now, was there only one
`
`version of the DV?N source code provided?
`
`ANSWER:
`
`The one I
`
`looked at —— actually,
`
`take that back.
`
`"
`
`think "
`
`saw several.
`
`%ut
`
`did see
`
`the one that was associated with the public
`
`demonstration.
`
`And I asked you: Well, how were you able to
`
`determine that it was associated with the public
`
`demonstration?
`
`And your answer was, at that time at least:
`
`That would have been through the deposition testimony.
`
`Do you see that?
`
`Yes.
`
`And "
`
`followed up, skipping down a little bit.
`
`Question: Whose deposition; do you remember?
`
`You said: Actually,
`
`I don't.
`
`I don't
`
`remember specifically.
`
`said: Well,
`
`let me see i‘
`
`" can refresh
`
`your recollection.
`
`There are two guys, Sterne and
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2204
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2204
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 138 of 167
`
`l38
`
`Kindred,
`
`from Sparta?
`
`You said: That's right.
`
`said: Was it one o:
`
`those two guys?
`
`Your answer was:
`
`Frankly, sitting here at
`
`this late hour,
`
`I can't remember how I knew which
`
`version was actually demonstrated.
`
`It nay have simply
`
`been represented to me that that was a fact.
`
`Do you see that?
`
`Yes,
`
`I do.
`
`And I asked you: Represented to you by the
`
`A.
`
`Q.
`
`lawyers?
`
`You said: Well,
`
`they're not my lawyers, but
`
`And " clari‘ied:
`
`Qy Microso‘t's lawyers?
`
`And you said: Yes,
`
`that's correct.
`
`Do you see that?
`
`Yes,
`
`I do.
`
`That
`
`testimony is still
`
`truth‘
`
`A.
`
`Q.
`
`were telling -he truth at
`
`the time?
`
`A.
`
`Yes.
`
`I didn't know then, and I'm not sure
`
`Q.
`
`Now, Dr. Wicker, let's assume that you and
`
`Microsoft
`
`lawyers are correc , and you actually did
`
`identify the right version of code that was used at
`
`that
`
`March
`
`_998 demonstration.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2205
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2205
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 139 of 167
`
`139
`
`A.
`
`Yes.
`
`Q. Without talking to Mr. Turchi, who actually
`
`wrote the code, okay, are you absolutely certain that
`
`this source code authoritatively describes what was
`
`shown at
`
`the demonstration?
`
`A.
`
`I
`
`think that the evidence is clear as to what
`
`was
`
`shown at
`
`the demonstration and the source code ——
`
`Q.
`
`Dr. Wicker --
`
`—— reflects what was at
`
`the demonstration.
`
`Dr. Wicker,
`
`that's not my question.
`
`Are you certain, with authority,
`
`that that
`
`source code was
`
`the source code used for the
`
`demonstration?
`
`A.
`
`Q.
`
`As certain as I can be.
`
`See what Mr. Sterne said about that when he
`
`was asked a similar question.
`
`MR. McLEROY:
`
`"‘ we can go to --
`
`Slide 23.
`
`Sorry.
`
`It's Mr. Kindred's testimony.
`
`(By Mr. McLeroy) He said: And, again,
`
`in
`
`order to know exactly what was demonstrated in the
`
`spring o;
`
`'98, you'd need to look at
`
`the source code.
`
`Spring o:
`
`'98, he was referring to March of
`
`l998; don't
`
`you think?
`
`A.
`
`Yes,
`
`I
`
`think that's right.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2206
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2206
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 140 of 167
`
`l4O
`
`Q .
`
`He said:
`
`To know exactly what was
`
`demonstrated,
`
`yes.
`
`But
`
`then he caught himsel:.
`
`You see that?
`
`fie said:
`
`Let me quali_
`
`—y
`
`-hat.
`
`And then he
`
`said:
`
`Tha
`
`wouldn't be authoritative either, because
`
`the demons
`
`:ration didn't
`
`show everything that was
`
`in the
`
`implementa
`
`:ion.
`
`Do you see that?
`
`Yeah.
`
`Yes,
`
`see that.
`
`We didn't get
`
`to ask Mr.
`
`Turchi that question,
`
`NO,
`
`not as far as
`
`know.
`
`Now,
`
`a few more questions about
`
`JV ?N.
`
`MR. MCLEROY: Your Honor, do you mind i:
`
`approach
`
`the demonstration board again?
`--1
`
`Ti; COUQT:
`
`You may.
`
`Mk. McLEROY:
`
`appreciate the help.
`
`Q.
`
`(By Mr. McLeroy) Unfortunately,
`
`Dr. Wicker,
`
`it
`
`looks like
`
`your markers are ‘ading.
`
`A.
`
`Q.
`
`Yes,
`
`noticed that.
`
`Invisible ink makes it harder to
`
`cross—exam
`
`ine, huh?
`
`Secure
`
`DNS request,
`
`that's what you wrote
`
`there,
`
`right?
`
`A.
`
`That's right.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2207
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2207
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 141 of 167
`
`l4l
`
`That's probably hard
`
`for the jury to see now.
`
`And you showed it going
`
`from the Red Cross
`
`client to Red Cross
`
`firewall;
`
`is that right?
`
`A.
`
`Q .
`
`That's correct.
`
`It was that request
`
`that was the
`
`thing you
`
`drew on the board,
`
`right?
`
`believe it was,
`
`yes.
`
`So that's what
`
`triggered the setting up o:
`
`right?
`
`Well,
`
`there were a number o_
`
`s-eps in between,
`
`but, yes,
`
`that was
`
`the
`
`first step to what eventually
`
`caused that V
`
`?N between the two
`
`firewalls to be created.
`
`Dr.
`
`Wicker,
`
`that was the first step, right?
`
`Yeah.
`
`That was the trigger?
`
`It was
`
`-he first step.
`
`It was
`
`-he -rigger?
`
`The trigger is the determination step that's
`
`caused when
`
`the Red Cross
`
`firewall goes to the coalition
`
`manager and
`
`finds that
`
`there's a secure association
`
`Q.
`
`So it's your
`
`testimony that trigger means
`
`determination?
`
`Yes or no,
`
`trigger means determination?
`
`A. Well,
`
`that
`
`'s what
`
`well,
`
`should ask you
`
`what you meant
`
`by trigger,
`
`so
`
`can give you a good
`
`answer to your question.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2208
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2208
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 142 of 167
`
`1 4 2
`
`To me,
`
`I
`
`thought —— when you said trigger,
`
`‘
`
`that you were referring to the step that caused
`
`:ablishment of V?N.
`
`A trigger means first step, okay?
`
`Okay.
`
`Q.
`
`You say it's the DNS request
`
`the triggers this
`
`process, right?
`
`A. Wel‘,
`
`i
`
`that's the first step --
`
`Q.
`
`A.
`
`Q.
`
`Take the definition we
`
`just agreed on.
`
`I'm sorry?
`
`"" you take the definition we
`
`just agreed on,
`
`the trigger being the first step, you agree that the DNS
`
`request triggers this process?
`
`A.
`
`Q.
`
`The DNS request
`
`is the first step.
`
`That's your testimony?
`
`MR. McLEROY: Could you go Slide 24 now?
`
`Q.
`
`(By Mr. McLeroy) This is what Mr. Saydjari
`
`said in his deposition, and he was confronted with his
`
`testimony yesterday.
`
`Do you remember when he talked about that with
`
`Mr. Cawley?
`
`A.
`
`Yes,
`
`I do.
`
`Or
`
`I should say I read the
`
`transcript.
`
`I actually wasn't
`
`in cour
`
`.
`
`I
`
`saw it.
`
`Q.
`
`He said:
`
`I would doubt that they would use
`
`DNS call to trigger.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2209
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2209
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 143 of 167
`
`l43
`
`Do you remember that?
`
`A.
`
`Yes.
`
`Q .
`
`Now, Mr.
`
`Saydjari actually attended this
`
`meeting,
`
`didn't he?
`
`Yes,
`
`that's correct.
`
`He was
`
`there;
`
`he has firsthand knowledge?
`
`believe that's what he said,
`
`yes.
`
`And he was paid by Microsoft
`
`to travel down to
`
`participate in
`
`this lawsuit, right?
`
`Yes,
`
`they paid
`
`for his time.
`
`And his
`
`testimony was that
`
`doubt
`
`they would
`
`DNS call
`
`to trigger.
`
`See that?
`
`A.
`
`Yes.
`
`Q .
`
`All right.
`
`Dr.
`
`Wicker,
`
`let's move on to
`
`Aventail
`
`We're running out of
`
`time.
`
`I'll just cover a
`
`quick point with you.
`
`MR. MCLEROY: Your Honor, do you mind i:
`
`to the Aventail board?
`--1-1.4
`
`COURT: No.
`
`You may.
`
`T M
`
`out
`
`Q.
`
`MCLEROY:
`
`Now
`
`know why you were
`
`handling
`
`these over
`
`there.
`
`Q .
`
`(By Mr.
`
`Mcaeroy) You identified the client
`
`and the Aventail system on this board as the
`
`on the Very
`
`_aT,
`
`We
`
`“t.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2210
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2210
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 144 of 167
`
`1 4 4
`
`Do you see that?
`
`Yes,
`
`that's correct.
`
`That's what you labeled it?
`
`MR. McLEROY:
`
`Can we put up Slide l8 o:
`
`Dr. Wicker's presentation?
`
`0: Dr. Wicker's
`
`presentation, do you have tha .
`
`(By Mr. McLeroy) Here —— and you were talking
`
`believe,
`
`the context o:
`
`the 'l35 patent.
`
`This
`
`the client here?
`
`A.
`
`No.
`
`That
`
`is a client
`
`in some situations.
`
`In this particular claim,
`
`in the 'l80,
`
`showed how the Aventail SOCKS Server could act as a
`
`claim.
`
`Q.
`
`Okay.
`
`So depending on which claim or which
`
`you're talking about, you changed the label o:
`
`computer, didn't you?
`
`Wo.
`
`No,
`
`I don't think that's fair.
`
`Dr. Wicker, you labeled the client computer as
`
`A.
`
`Q.
`
`the computer on the tar lett here;
`
`is that right?
`
`A.
`
`Q.
`
`Yes,
`
`I did.
`
`All right.
`
`And then i: you look at
`
`the
`
`monitor,
`
`that corresponds to the computer on the
`
`left in your slide, right?
`
`A.
`
`Q.
`
`That's right.
`
`And then you show two servers. They're
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2211
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2211
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 145 of 167
`
`1 4 5
`
`labeled Server 1 and Server 2 up on the big board,
`
`the
`
`big board up top;
`
`is that right?
`
`A.
`
`Q.
`
`Yes,
`
`that's right.
`
`And then you have the SOCKS server and the
`
`SOCKS server on the board that's here in the courtroom
`
`with us, right?
`
`A.
`
`Q.
`
`A.
`
`Yes,
`
`that's correct.
`
`Those correspond to each other;
`
`is that right?
`
`Yes.
`
`Server l
`
`in this diagram ‘or proxy
`
`chaining is the same as Aventail SOCKS Server on the
`
`lett as we see on the board,
`
`that's right.
`
`o.
`
`All right.
`
`MR. McLEROY:
`
`And i: you can take that
`
`blowup down for a second.
`
`Q.
`
`(By Mr. McLeroy) Then there's a destination
`
`server on the far right, and that corresponds to what
`
`you've labeled the secure website here in your drawing;
`
`is that right?
`
`A.
`
`That's correct.
`
`MR. McLEROY:
`
`"" you could just keep it
`
`right there.
`
`Q.
`
`(By Mr. McLeroy) Now, up on your slide you
`
`prepared with the highlighting, you said:
`
`?erformed by
`
`a client computer;
`
`is that right?
`
`A.
`
`That's correct.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2212
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2212
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 146 of 167
`
`1 4 6
`
`Q.
`
`And you highlighted the server labeled Server
`
`l;
`
`is that right?
`
`A.
`
`Q.
`
`That's right.
`
`In this drawing, when you were asked what
`
`the
`
`client computer is, you labeled this computer here,
`
`right?
`
`You labeled this Aventail client, right?
`
`A.
`
`That's labeled as a client.
`
`It is a client.
`
`Q.
`
`And those aren't the same two computers, are
`
`they?
`
`A.
`
`Q.
`
`They're both acting as clients.
`
`And I
`
`think what you wanted to tell me earlier
`
`was that depending on the claim or depending on the
`
`patent you're talking about, you would identiiy
`
`di"'erent things as a client computer;
`
`is that right?
`
`A.
`
`No. No. What
`
`I'm saying is that
`
`in some
`
`situations, one could act as a client, and at
`
`the same
`
`time, another could be acting as a client.
`
`It's all
`
`relative. Client server architecture ——
`
`Q.
`
`But --
`
`—— are relationships.
`
`Q.
`
`So in some situations,
`
`the computer on the
`
`left is the client.
`
`And in other situations, it's the
`
`second computer
`
`from the left that's the client
`
`computer.
`
`Is that your analysis in this case?
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2213
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2213
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 147 of 167
`
`1 4 7
`
`A.
`
`It's more accurate to say that both can act as
`
`clients.
`
`Q.
`
`Dr. Wicker, you identified di
`
`'erent client
`
`computers in these two drawings;
`
`that's fair, right?
`
`A.
`
`That's correct.
`
`Q.
`
`And YOJ did the same thing when you were
`
`talking about DV?N; isn't that right?
`
`You iden-ijied client computers —— di
`
`lient computers a- di
`
`'erent times with di
`
`"aims, right?
`
`A.
`
`That's right.
`
`0
`
`'
`
`'erent computers
`
`could act as clients.
`
`Q.
`
`So you didn't consistently identify the same
`
`computer as a client computer all the way through this
`
`prior art, right?
`
`A.
`
`Q.
`
`A.
`
`No,
`
`I wouldn't agree with that.
`
`You wouldn't agree with that?
`
`I consistently showed where computers could
`
`act as clients throughou .
`
`Q.
`
`You consistently identified multiple computers
`
`as the client computer;
`
`is that right?
`
`A. Multiple computers can act as clients.
`
`Q.
`
`And you had multiple computers that you
`
`fied as client computers;
`
`is that right?
`
`That's correct.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2214
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2214
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 148 of 167
`
`1 4 8
`
`Q.
`
`And you pointed to di
`
`'erent client computers
`
`to meet
`
`the di”'erent elements o:
`
`the claims;
`
`isn't that
`
`right?
`
`A.
`
`That's true.
`
`Q.
`
`All right.
`
`I want
`
`to talk briefly now about
`
`the 'l8O patent.
`
`One really big issue on the 'l8O patent
`
`is
`
`ther the prior art contains secure domain names;
`
`is
`
`t right?
`
`A.
`
`That's correct.
`
`Q.
`
`The term that was defined by the Court;
`
`is
`
`that right?
`
`A.
`
`Q.
`
`Yes,
`
`that's right.
`
`And you never showed the claim construction o:
`
`secure domain names in your testimony, did you?
`
`A.
`
`I actually described it several
`
`times.
`
`never actually put it on the screen.
`
`Q.
`
`A.
`
`Q.
`
`You didn't put it on the board, did you?
`
`No, but
`
`I explained i- to -he jury.
`
`Now, secure domain names,
`
`that term shows up
`
`in every claim oj
`
`-he 'l8O patent, right?
`
`A.
`
`Q.
`
`Yes,
`
`that's correct.
`
`And so if the jury decides that the prior art
`
`does not
`
`teach any secure domain names, you'd agree that
`
`none of the claims o:
`
`the 'l8O patent are anticipated;
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2215
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2215
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 149 of 167
`
`1 4 9
`
`is that right?
`
`A.
`
`"‘ the jury decides that the prior art
`
`discussed does not reveal or disclose any secure domain
`
`names,
`
`then ——
`
`Q.
`
`Then the claims o:
`
`the 'l8O patent would be
`
`anticipated;
`
`is that right?
`
`A.
`
`"‘ it shows —— it has to show the capability
`
`for secure domain names.
`
`"" it doesn't
`
`show that,
`
`then
`
`yes.
`
`Q.
`
`Okay.
`
`Now, you believe that standard domain
`
`names, domain names that have been in existence,
`
`I
`
`think
`
`since, you testified,
`
`in the mid—'80s,
`
`that those can be
`
`security domain names.
`
`That's right,
`
`isn't it?
`
`A. Well,
`
`l982, but yes.
`
`Q.
`
`And you agree with me,
`
`I believe,
`
`that the
`
`prior art
`
`in this —— at
`
`issue in this case, it only uses
`
`standard domain names;
`
`is that right?
`
`A.
`
`There are domain names that have the standard,
`
`fully qualified domain name structure,
`
`i: that's what
`
`you mean.
`
`Q. Well,
`
`let's look at your deposition.
`
`MR. McLEROY:
`
`Can you put up ?age 64 to
`
`his deposition?
`
`?age 64, starting at Line 23.
`
`(By Mr. McLeroy)
`
`I asked you there ——
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2216
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2216
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 150 of 167
`
`150
`
`MR. McLEROY: Would you put up the next
`
`two lines o:
`
`the next page?
`
`That would be great.
`
`By Mr. McLeroy) Now, are YOJ aware ——
`
`MR. McLEROY: Yes,
`
`the ”irst "ive lines.
`
`Q.
`
`(By Mr. McLeroy) Question:
`
`Now, are you aware
`
`o:
`
`any prior art references that you rely on that use
`
`non—standard domain names?
`
`Did I read that right?
`
`A.
`
`Yes.
`
`Q.
`
`You said:
`
`I can't think o: an example o;
`
`a
`
`prior art reterence on which I relied that uses domain
`
`names, other than those defined as standard in the RFCs.
`
`that right?
`
`t's correc .
`
`t's consistent with what you just said,
`
`Right.
`
`I still can".
`
`You just believe that these standard domain
`
`names can also be secure domain names;
`
`is that right?
`
`That's your opinion?
`
`A.
`
`That
`
`is correct.
`
`Q.
`
`And so you believe that secure domain names o:
`
`the VirnetX patents,
`
`that they can overlap with the
`
`standard domain names resolved by a conventional domain
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2217
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2217
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 151 of 167
`
`1 5 1
`
`name server;
`
`is that right?
`
`A.
`
`I'm no: sure what you mean by overlap.
`
`"" you
`
`could show me
`
`the Court's claim construction,
`
`I could
`
`point out how a standard domain name could satis:y.
`
`Q.
`
`I'd rather show you your deposition.
`
`MQ. McLEROY:
`
`Can we go to ?age 88 o:
`
`deposition?
`
`I'm sorry.
`
`I need to give you a line
`
`number.
`
`Line 22 and continie over to 89/l.
`
`So 88/22 to
`
`89/1.
`
`Yeah,
`
`that's right. Lines 22 and then
`
`carrying over to the next page, question and answer.
`
`Q.
`
`(By Mr. McLeroy) Question:
`
`So it's your
`
`opinion that the inventors considered, believed that
`
`a
`
`secure DNS could overlap with a standard DNS.
`
`So you used the term overlap there, right?
`
`Yes.
`
`And your answer was: Yes.
`
`Yes.
`
`So you will agree with me that it's your
`
`opinion that secure domain names can overlap with
`
`conventional or standard domain names;
`
`is that right?
`
`A. Well,
`
`they can occupy the same DNS server,
`
`And a name can be a secure name at
`
`the same
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2218
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2218
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 152 of 167
`
`1 5 2
`
`time it can be a conventional name;
`
`is that right?
`
`A.
`
`I don't think at
`
`the same time, but at
`
`times, yes.
`
`Q.
`
`Okay. There's no —— nothing that precludes a
`
`secure domain name just
`
`looking at it from also being a
`
`conventional domain name;
`
`is that right?
`
`A. Well, again,
`
`i" it requires authorization,
`
`according to the Court's claim construction,
`
`then it's
`
`secure.
`
`"
`
`it doesn't require authorization,
`
`then it's
`
`not secure.
`
`The question o: whether it requires
`
`authorization may have a di
`
`'erent answer over the
`
`course o:
`
`time.
`
`So a name over the course o:
`
`time may
`
`be secure at one point and not secure at another,
`
`i;
`
`that's what you're asking.
`
`Q.
`
`It's your testimony that the prior art only
`
`teaches standard domain names, right?
`
`A.
`
`As called for in the art o; —— yes,
`
`the domain
`
`names are standard.
`
`Q.
`
`And it's your opinion that something that
`
`is a
`
`standard domain name can't also at
`
`the same time be a
`
`secure domain name;
`
`is that right?
`
`They can't overlap?
`
`A.
`
`Q.
`
`A.
`
`No. No. That's not right.
`
`So they can overlap?
`
`'
`
`I said was a name can be secure at one
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2219
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2219
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 153 of 167
`
`l53
`
`
`
`1 point and not secure at another.
`
`A standard domain name can be secure at one
`
`point and not
`
`SGCUIG afi
`
`another point
`
`in time.
`
`me —— let
`
`me do this.
`
`MR. MCLEROY:
`
`Would you put up Slide 3l,
`
`By
`
`Mr. McLeroy)
`
`Sorry.
`
`The font
`
`is a little
`
`small.
`
`This is
`
`from
`
`the deposition o:
`
`Dr. Johnson.
`
`Do you see
`
`that?
`
`Yes,
`
`do.
`
`And
`
`he was asked a question,
`
`and he answered
`
`A.
`
`Q.
`
`the question:
`
`Do you agree
`
`that secure domain names o:
`
`the claims o:
`
`the
`
`'l8O patent
`
`do not overlap with
`
`standard domain names resolved by the conventional
`
`Do you see that?
`
`Yes,
`
`do.
`
`He answered the question yes,
`
`right?
`
`That's correct.
`
`Dr.
`
`Wicker,
`
`how do you answer that
`
`question?
`
`would have to know what
`
`the con
`
`-exL o_ the
`
`question was.
`
`the question is asking me whether a
`
`given domain name
`
`can be secure at one moment and not
`
`secure at another,
`
`the answer
`
`is yes.
`
`you're asking whether a secure domain name
`
`20
`
`2l
`
`22
`
`23
`
`24
`
`25
`
`can reside in a
`
`DNS with unsecure names,
`
`the answer
`
`is
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2220
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2220
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 154 of 167
`
`1 5 4
`
`clearly yes.
`
`Can you restate the question?
`
`answered it.
`
`Q.
`
`Dr. Johnson was able to answer the question,
`
`wasn't he?
`
`And I'll tell you,
`
`I honestly didn't
`
`understand your answer.
`
`A.
`
`Q.
`
`Okay.
`
`So let's
`
`I mean, can you answer the question yes or no
`
`Dr. Johnson answered yes or no to?
`
`A.
`
`Okay.
`
`"'
`
`if the question, as he
`
`understood it,
`
`is whether the domain name can be both
`
`secure and unsecure at
`
`the same time, clearly,
`
`that
`
`doesn't make sense.
`
`That can't be the case.
`
`Q.
`
`Dr. Wicker,
`
`let's —— I guess let's get
`
`to the
`
`real
`
`issue here.
`
`You don't want
`
`to disagree with Dr. Johnson's
`
`testimony; isn't that right?
`
`A.
`
`Dr. Johnson is a very impressive individual.
`
`just don't know what's being meant —— I don't know the
`
`context.
`
`Q.
`
`Dr. Wicker, you would agree it would look bad
`
`" Microso‘t's —— well, how many experts does VirnetX
`
`have?
`
`It's just Dr. Jones, right?
`
`A.
`
`I believe you have a damages expert.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2221
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2221
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 155 of 167
`
`1 5 5
`
`know how many other experts.
`
`Q.
`
`aet me be clear.
`
`?rofessor Jones is going to
`
`testify.
`
`ie's o "ered opinions on infringement and
`
`validity;
`
`is that right?
`
`A.
`
`Q.
`
`Yes, sir.
`
`Now, Microsoft, on the other hand, hired
`
`Dr. Johnson to opine on invalidity and hired you to
`
`-estify about —— did I mix this up?
`
`Johnson,
`
`infringement; Dr. Wicker,
`
`invalidity.
`
`Sorry about that.
`
`A.
`
`Q.
`
`Yes, sir.
`
`I mean, you think it's important that the two
`
`separate experts Microso_- hired,
`
`that they o
`
`er
`
`consistent opinions, don't you think?
`
`A.
`
`Yes.
`
`Q.
`
`It would test Microsoft's credibility i:
`
`had one exper
`
`-ha- answered this question yes, and
`
`another exper
`
`-ha- answered this question no.
`
`Don't you agree?
`
`Yes.
`
`Dr. Wicker, can you answer this question yes
`
`Johnson did?
`
`A.
`
`To the extent he's saying that
`
`a standard
`
`domain name cannot be a secure name under the Court's
`
`claim construction,
`
`I don't agree.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2222
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2222
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 156 of 167
`
`156
`
`Q.
`
`You don't agree with Dr. Johnson.
`
`He gave his
`
`deposition after the Court's claim construction order
`
`came out, didn't he?
`
`A.
`
`Yes.
`
`There may be other context
`
`to the
`
`question that
`
`I'm not seeing.
`
`Q.
`
`Dr. Wicker, you and Dr. Johnson have taken
`
`inconsistent positions on this issue, haven't you?
`
`A.
`
`I don't agree.
`
`I don't know the context o:
`
`the question.
`
`Q.
`
`A.
`
`You just answered the question no, right?
`
`As
`
`I understand it,
`
`I would say no.
`
`MR. Mc TROY:
`
`?ass the witness.
`
`T I
`
`QT: All right. Redirect?
`
`M .
`
`<OW:
`
`Thank you, Your Honor.
`
`{fiCl
`
`fiXAM NAl ON
`
`%ROW:
`
`Q.
`
`?rofessor Wicker, during the
`
`cross—examina:ion,
`
`it began some time ago with some
`
`questions aboat
`
`the demonstration that Mr. ?all did here
`
`in Court.
`
`A.
`
`Q.
`
`Do you recall that testimony?
`
`Yes,
`
`I do.
`
`And do you recall that Mr. McLeroy came over
`
`to this board and poin,ed -o the determining step o:
`
`Claim 1 o:
`
`the 'l35 patent?
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2223
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2223
`
`
`
`Case 6:
`
`O7-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 157 of 167
`
`1 5 7
`
`Do you recall that?
`
`Yes,
`
`do.
`
`Then he pointed to some testimony by Mr.
`
`_?a_ _
`
`A.
`
`Q .
`
`about
`
`whether or not that determining step was typica"
`
`met by the demonstration tha'
`
`was conducted.
`
`Do you remember that as well?
`
`A.
`
`Yes,
`
`do.
`
`Q.
`
`And do you remember saying that you disagreed
`
`the question that Mr. McLeroy was asking you, but
`
`he interrupted you and wouldn"
`
`let you explain why
`
`with
`
`then
`
`you disagreed wi'
`
`:h the characterization he was making?
`
` Do you remember
`
`tha'
`
`—o
`
`A.
`
`Yes,
`
`do.
`
`Can
`
`you please explain now the answer tha'
`
`you wanted
`
`to give then,
`
`bu
`
`Lha Mr. McLeroy wouldn“
`
`let you?
`
`A.
`
`Yes.
`
`would be happy to.
`
`In the first demonstration,
`
`the one that
`
`Mr. ?all
`
`did,
`
`initially he used
`
`and, again,
`
`can't
`
`remember
`
`the name o:
`
`the websi
`
`te,
`
`but it was sor
`
`iething
`
`like
`
`trustedwebsite.com or secirewebsite.com.
`
`What happened in tha' situation was the
`
`comp
`
`and
`
`iter went
`
`to a phone book,
`
`found securewebsite.com,
`
`the phone book indicated
`
`that
`
`a V?N was to be
`
`crea'
`
`:ed.
`
`It determined -haL -he secure V
`
`?N connection
`
`was necessary.
`
`It satistied the step.
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2224
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2224
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 158 of 167
`
`158
`
`The subsequent demonstrations did not
`
`demonstrate that step one way or another, because
`
`e3ay.com —— and this is not a secure website dot—com ——
`
`were not
`
`in the phone book.
`
`It was not a question o:
`
`not determining.
`
`It simply wasn't
`
`in the phone book.
`
`And so what
`
`the system did then is it went on to try
`
`di
`
`'eren' ways to resolve those names.
`
`And at one
`
`point,
`
`i‘
`
`tried to contact
`
`the DNS through that V?N.
`
`So it wasn't
`
`a matter —— the second two didn't
`
`show that that element was not satisfied.
`
`It simply
`
`showed that Microsoft
`
`indeed is very tenacioas in trying
`
`to create a connection and to resolve those things.
`
`Q.
`
`Now,
`
`in your testimony earlier, you had said
`
`the NT 4 operating system had been released in l996
`
`9919 and AutoDial.
`
`Do you recall that?
`
`Yes,
`
`I do.
`
`And do you recall that Mr. McLeroy pointed at
`
`A.
`
`Q.
`
`some computers and some software and the like dated in
`
`the year 2000?
`
`Do you recall that?
`
`A.
`
`Yes.
`
`Q.
`
`All right.
`
`Now,
`
`in your opinion, with your
`
`computer science background and the work you've done in
`
`this case, does that equipment and software from the
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2225
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2225
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 159 of 167
`
`159
`
`year 2000 impact at all the operation o:
`
`the executable
`
`NT 4 operating system from l996?
`
`A.
`
`Q.
`
`A.
`
`It does not a
`
`ect it at all.
`
`Can you please explain why that
`
`is?
`
`First o"', Windows 2000,
`
`the sticker that you
`
`saw,
`
`that's a later operating system.
`
`"it
`
`.0},
`
`Mr. ?all's demonstration, he wasn't using the Windows
`
`2000 operating system.
`
`He was using Windows NT 4,
`
`the
`
`earlier one from four years back.
`
`Secondly, what he was demonstrating was
`
`the
`
`so tware.
`
`It's hard to find computers that are —— I'm
`
`ge ting hired;
`
`the math is harder —— but 16,
`
`l7 years
`
`old.
`
`So they found a computer that was close and
`
`installed the old software on i‘.
`
`So he demonstrated how the software worked,
`
`and that software was
`
`from l996.
`
`The fact that that
`
`computer once held an older —— excuse me —— a newer
`
`operating system is irrelevan .
`
`Q.
`
`All right.
`
`Now,
`
`let me shift gears, and
`
`want
`
`to ask you another question about
`
`the NT 4 system
`
`and AutoDial
`
`to follow up on a question that you were
`
`asked by Mr. McLeroy.
`
`You may recall that you were asked several
`
`questions about AutoDia; reconnecting.
`
`Do you remember that?
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2226
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2226
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 160 of 167
`
`160
`
`Yes.
`
`And do you remember asking several questions
`
`o:
`
`. McLeroy and providing some answers about what
`
`reconnect meant
`
`in the context of NT 4 and AutoDial and
`
`_:’l_
`
`BN8?
`
`A.
`
`Q.
`
`Do you remember that?
`
`Yes, sir.
`
`And you were asked a question and I believe
`
`that Mr. Mcaeroy again came over here to this board for
`
`the 'l35 patent, and what he pointed to was this phrase,
`
`automatically initiating the V?N.
`
`Do you remember that
`
`line of questions, sir?
`
`Yes,
`
`I do.
`
`And what you were asked,
`
`I believe, was about
`
`A.
`
`Q.
`
`the very first time —— the very first time that
`
`a
`
`connection is made, and I
`
`think that you said that you
`
`didn't know in the demonstration that was done how the
`
`connection was made the very firs,
`
`time;
`
`is that right?
`
`A.
`
`Q.
`
`Yes,
`
`that's correct.
`
`All righ .
`
`Now,
`
`from the demonstration that
`
`you saw and your knowledge of NT 4, do you know how the
`
`V?N was initiated the times thereafter?
`
`A.
`
`Yes.
`
`Q.
`
`Can you please tell us how the V?Ns have been
`
`initiated for the second time and the third time and the
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2227
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2227
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 161 of 167
`
`1 6 1
`
`fourth time and every other time therea_,er?
`
`A.
`
`They were ini-ia-ed automatically by AutoDial.
`
`All right.
`
`Shi__ing now from the NT 4
`
`topic
`
`may, you were asked some questions about
`
`?N source code.
`
`Do you recall that?
`
`Yes,
`
`I do.
`
`First o‘ a'l, was the DV?N source code
`
`A.
`
`Q.
`
`only information -ha- you considered about
`
`the JV;
`
`demonstration that occurred in March of
`
`l998?
`
`A.
`
`No.
`
`No,
`
`I relied on a lot o: other
`
`formation.
`
`Q.
`
`Can you tell us and remind us, please, what
`
`other information you considered about
`
`the DV?N
`
`demonstration from l998, March, besides the source code?
`
`A.
`
`Sure.
`
`One example was a description o:
`
`presentation that described the demo.
`
`I also had a
`
`number of e—mails that described it in detail.
`
`And
`
`had deposition testimony.
`
`Q.
`
`Now, did you believe —— after your review and
`
`study o_ that
`
`information, all the information you
`
`considered, did you believe tha- that
`
`information was
`
`su "icient to show clearly and convincingly wha
`
`,he
`
`demons-ra-ion showed in March of
`
`l998 su’”icien
`
`-o show
`
`that it anticipated the claims at
`
`issue in this case?
`
`Petitioner Apple Inc. — Exhibit 1028, p. 2228
`
`Petitioner Apple Inc. - Exhibit 1028, p. 2228
`
`
`
`Case 6:07-cv-00080-LED Document 397
`
`Filed 04/05/10 Page 162 of 167
`
`1 6 2
`
`A.
`
`Yes.
`
`Q.
`
`A.
`
`Can you please explain why?
`
`There was su ”icient evidence.
`
`And as you
`
`will recall, clear and convincing evidence is the
`
`burden.
`
`And when I studied that
`
`information,
`
`"
`
`found
`
`that that burden was met. All
`
`the information pointed
`
`to a demonstration that clearly met a'l of
`
`the asserted
`
`claims of
`
`the paten:s—in—suit.
`
`Q.
`
`Now, "'d 'ike to shift topics again and turn
`
`to the Aventail so_-ware.
`
`MR. %O%ROW: And, Chris,
`
`i-
`
`" may ask you
`
`to put up Slide l8 from the ?ower?oint.
`
`Thank you.
`
`Q.
`
`(iy Mr. Qobrow)
`
`I believe that Mr. McLeroy
`
`showed you this —— I believe I
`
`took my notes down
`
`correctly.
`
`I believe it was this slide and asked you
`
`some quest
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